Gregory v. Wilkes
| Decision Date | 27 June 1945 |
| Citation | 205 N.Y.S.2d 405,26 Misc.2d 641 |
| Parties | Lewis E. GREGORY and Thomas P. Gregory, Plaintiffs, v. Clarence B. WILKES, individually, The Hanover Bank and Clarence B. Wilkes, as Trustees under Deed of Trust made and executed by Fanny K . Gregory, deceased, dated |
| Court | New York Supreme Court |
De Forest, Elder & Mulreany, New York City (Matthew J. Shevlin, Duncan Elder and Robert M. Dobbins, New York City, of counsel), for plaintiffs.
Turk, Marsh, Ouchterloney & Kelly, New York City (Eben E. Rand, New York City, of counsel), for defendants.
This is a motion to dismiss on the ground that there is another action pending between the same parties for the same cause. The other 'action' in this case is a proceeding pursuant to article 79 of the Civil Practice Act, for the judicial settlement of the account of trustees of an express trust; but, if the conditions of the rule are met, the fact that the other litigation is a special proceeding rather than action is immaterial (Colson v. Pelgram, 259 N.Y. 370, 182 N.E. 19).
The amended complaint in the instant action brought by the sole heirs and distributees of the settlor alleges fraud and undue influence on the part of one of the trustees in procuring by means of an amendment to the original trust agreement a provision for himself of one-half of the remainder of the trust principal. Judgment is requested that the trustees be ordered to hold title to said half of the remainder for plaintiffs' benefit and to convey same to them as the sole heirs and distributees.
On the same day that this action was commenced by service of summons and complaint plaintiffs interposed an answer and objections in the article 79 proceeding for the settlement of defendants' account as trustees, alleging therein that the individual defendant had benefited through the exercise of fraud and undue influence, annexing a copy of the complaint in this action, asserting its pendency and requesting the court in that proceeding to stay payment to said defendant until their claim in this action had been determined. Their position in effect is that the article 79 proceeding continue insofar as the settlement of the account as such is concerned, but that payment of the provision for the individual defendant be enjoined until the determination of their action.
Plaintiffs seek by this action to set aside a provision of...
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Maggi v. Maggi
...we agree with the appellant's contention that the instant proceeding is beyond the scope of CPLR article 77 (see, Gregory v. Wilkes, 26 Misc.2d 641, 642, 205 N.Y.S.2d 405; see also, Matter of Reilly, 17 Misc.2d 1077, 156 N.Y.S.2d 478, affd. 3 A.D.2d 1001, 165 N.Y.S.2d 431), we reject her ar......
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Berger v. Berger
...plaintiff's action for divorce (see Kent Development Co. v. Liccione, 37 N.Y.2d 899, 378 N.Y.S.2d 377, 340 N.E.2d 740; Gregory v. Wilkes, 26 Misc.2d 641, 205 N.Y.S.2d 405). Therefore, that counterclaim cannot be considered "another action pending between the same parties for the same cause ......
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Kumm, Application of
...in this case is not an 'express trust' as defined in Article 79 of the Civil Practice Act. (C.P.A. § 1307. See also: Gregory v. Wilkes, 26 Misc.2d 641, 205 N.Y.S.2d 405; In the Matter of Bank of New York, 21 Misc.2d 566, 196 N.Y.S.2d 439; Application of Robin E. Roberts, etc., for an order ......
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Houston's Trust, In re
...their action brought for fraud and conversion. Such is without merit for the two matters are not 'for the same cause' (Gregory v. Wilkes, 26 Misc.2d 641, 205 N.Y.S. 405) and the special proceeding brought under article 77 is not one adaptable to the type of adversary plenary litigation envi......